Chapter 6 Copyright infringement

Question 1

Which 5 rights does copyright give?

Answer 1

1. To copy the work or any substantial part of it
2. To issue copies of the work to the public
3. To perform, show of play the work in public
4. To communicate to the work to the public
5. To make an adaption of the work or do any of the above in relation to an adaption

Question 2

What are two factors important for any claim to infringement of copyright?

Answer 2

1. Has there been access to the original work and are there substantial similarities?
2. Record keeping to show the different sources that have been used

Question 3

In was case does the lack of registration in copyright bring uncertainty? Explain.

Answer 3

In de case of Orphan works, the standard rule of life + 70 years is hard to determine if the author of a work is unknown. Therefore it is hard to determine if the work still has copyright protection or not.

Question 4

What is the leading case regarding copyright infringement where there was a combination of real-life events and historical fiction?

Answer 4

Harman Pictures

Question 5

What is one of the ways how a potential producer can do his due diligence in the case of orphan works?

Answer 5

Consult the IPO orphan works register

Question 6

By whom can a license be granted if due diligence did not find the original author in the case of orphan works and under what conditions?

Answer 6

By the IPO under 2 conditions:

1. A license fee
2. The conditions that when the author is identified that he will receive royalties

Question 7

What are key remedies for copyright infringement? (name 2)

Answer 7

1. The ability to claim damages

2. Seek an injunction to prohibit continued infringement

Question 8

What is the definition of primary inringement?

Answer 8

infringing the copyright owner’s exclusive rights

Question 9

What is the definition of secondary infringement?

Answer 9

Assisting in the making or distribution of infringing copies or the giving of infringing performances.

Question 10

Show the balance of probabilities of primary infringement of copyright (3).

Answer 10

1. The defendant carried out one of the activities that falls within the copyright owners control.
2. The defendants work was derived from the copyright work (a causal connection)
3. The restricted act was carried out in relation to the work or a substantial part thereof - s. 16 (4) CDPA 1988

Question 11

The whole work or substantial part thereof? Explain the Designers Guild case.

Answer 11

The court held that substantiality was a matter of impression principally concerned with a work’s derivation since where it was alleged that an entire design had been copied, a finding that the similarities between the works were of an extent and nature sufficient to support a finding of copying was also likely to be determinative of the issue of substantiality.

Question 12

The whole work or substantial part thereof? Explain the Newspaper licensing Agency v. M&S case.

Answer 12

Copyright only infringed by any use of a part that was qualitatively ‘substantial’, in the sense that it reproduced protected ‘labour, skill and judgement’ of the author.

Question 13

In most cases, a person who has lawfully come into possession of a
copy of a protected work will have the right either to resell the copy
or to make it available to members of the public on a rental basis. Which exception does the CDPA provide to this rule?

Answer 13

In the case of the rental of computer programs, sound recordings and films (s.66). Essentially, such works may be hired only under the terms, either of an order
made by the Secretary of State, or according to the provisions of a licensing scheme devised by the copyright owners and approved by the Copyright Tribunal.

Question 14

Is providing hyperlinks to infringing content a copyright infringement?

Answer 14

The use of hyperlinks to illegal sources can be identified as an infringement of copyright, especially if it is done for profit - according to EU legal framework.

Question 15

Svensson case which concerned a previously posted article which was now being offered for free with the use of deep links have been heavily criticised, why?

Answer 15

It was decided that there was no new public because there was no access control mechanism to the initial website which the work was posted on which meant practically there was no new public reached as the information was up for free anyway.
This has been criticised due to the extend to which hyperlink and electronic access can be defined as infringement of copyright.

Question 16

What is the main issue regarding software and copyright?

Answer 16

Any use of a program entails making a copy of its contents. the act of using software in its normal manner is capable, therefore of constituting a breach of copyright.